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Last Updated: 19 February 2013

Professor Douglas Kmiec Analyzes the Court's Decision

MALIBU, California, MAY 3, 2007 (Zenit.org).- The U.S. Supreme Court's recent decision to uphold a federal partial-birth abortion ban may be the necessary precedent to validate future laws defending life, according to an expert on family law.

For the first time since the Roe v. Wade decision in 1973, the U.S. Supreme Court has upheld a ban on a specific type of abortion.

For an in-depth analysis of this decision, ZENIT turned to Douglas Kmiec, professor and Caruso Family Chair in Constitutional Law at Pepperdine University, and a former justice department official and dean of the law school at Catholic University of America.

Q: First of all, can you tell us what the Supreme Court actually held in Gonzales v. Carhart?

Kmiec: Carhart upheld a nationwide ban on partial-birth abortion enacted by Congress as the Partial-Birth Abortion Ban Act of 2003.

Partial-birth abortion involves the near completed delivery of an intact child only to intentionally puncture the child's skull for purposes inflicting death by suctioning out the brain.

The Supreme Court found the state of Nebraska's ban of this gruesome procedure too vague to be enforceable, and lacking a health exception.

Congress tightened up the language and supplied an exception for life, but not for health. Responsible medical testimony found the procedure to be "never medically necessary" and fraught with its own health risks.

In its latest ruling, the court conceded that the need for a health exception was contested. Nevertheless, in spite of that medical uncertainty, the court found there was no basis to invalidate the law in its entirety.

Rather, the presumption should be in favor of the law's enforcement, leaving the door ajar just a bit should an unusually rare medical condition be specifically demonstrated to medically require the procedure.

In general, said the court, the federal restriction was perfectly valid since "the government has a legitimate and substantial interest in preserving and promoting fetal life."

Notwithstanding a great deal of hyperbole in the general press, Carhart is a faithful application of the earlier Casey precedent and it reaffirms that the states "retain a critical and legitimate role in legislating on the subject of abortion.... The political processes of the state are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential."

In this particular case, this meant that Congress did not need to supply a generally applicable health exception to the ban of a procedure that the Congress found was "never medically necessary."

The court did not necessarily accept that congressional finding; instead, it provided that any woman who believes she is facing a unique health challenge may make an individualized challenge to the ban on that case-by-case basis.

Q: There is some debate over whether Gonzales v. Carhart was a narrow decision that upheld a congressional law banning a specific abortion procedure or whether it completely changed the legal landscape of abortion. What is your assessment?

Kmiec: While only vindicating a ban of one notably ugly procedure, the ruling is important for the insight it supplies about the new "Roberts Court." Especially relevant is the extent to which the court chose to highlight the profound social injury that abortion represents to motherhood.

Writing for the court majority -- which included Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Antonin Scalia -- Justice Anthony Kennedy affirmed that "respect for human life finds [its] ultimate expression in the bond of love the mother has for her child."

Acknowledging abortion to be a painful and difficult moral decision, the court pronounced that it would be "self-evident" for any mother to regret her choice to abort. The majority speculated that this pain would be far greater if the law had permitted a doctor to engage in the shocking killing of a child partially born.

From the technical perspective of the law's development, Carhart is important in a number of respects that will increase the likelihood that abortion regulation beyond this one procedure will be upheld in the future.

First, it is an elementary rule that "every reasonable construction must be resorted to in order to save a statute from unconstitutionality."

Prior to Carhart, this basic principle of law and judicial humility was nevertheless disregarded in abortion cases. It was almost as if abortion legislation was presumed invalid, rather than valid. Carhart seems to change this giving more presumptive validity to abortion laws generally.

Second, the court made it harder to make what lawyers call a "facial" challenge to an abortion law. A facial challenge claims that a law cannot be constitutionally applied in any circumstance. The Carhart decision held that facial attacks are not the preferred means of constitutional adjudication.

In saying this, the court was mitigating some of the confusion caused when the court seemingly departed from the "heavy burden" that is typically placed upon parties that seek to strike a legislative enactment in its entirety.

The normal rule -- outside the abortion context -- was that those making a facial challenge to a statute must show that no set of circumstances exists under which the act would be valid. The court did not return completely to this normal rule in Carhart, but it edged closer to it.

Q: One of the more interesting aspects of the case is that it appears to resurrect the idea that a state has a moral interest in protecting fetal life. Does Gonzales v. Carhart allow legislatures to justify abortion regulations on the basis that some practices are immoral or inhumane?

Kmiec: Yes, to a point. Carhart held that it was legitimate for Congress to conclude that "ethical and moral concerns" justified the special prohibition of a procedure that Congress determined bore a "disturbing similarity to the killing of a newborn infant."

Nevertheless, caution is appropriate here. The court still relied upon the ban not constituting a substantial obstacle or undue burden on the women's decision.

Thus, while moral considerations were important here insofar as they supplied the rational basis for congressional action, the court is not indicating that it will accept moral considerations as sufficient to outweigh a woman's decision generally.

Q: Justice Ruth Bader Ginsburg's dissent vehemently criticized Justice Kennedy's recognition of the negative effects of abortion on women, and that some women come to regret their abortion. Will this recognition influence future pro-life efforts?

Kmiec: Justice Kennedy has been wrongly criticized. The dissent suggests he is relying upon archaic stereotype or that he assumes women are "too fragile" to digest accurate descriptions of abortion procedures.

In truth, Justice Kennedy is respecting -- not subjugating -- the judgment of the woman when he posits that if she is properly informed, she would be less likely to choose abortion. There is no necessary identity between a woman choosing to have an abortion and intelligence.

Indeed, it is the state's assumption that the rational woman will forgo an abortion when she has all the facts. Justice Kennedy said: "the state's interest in respect for life is advanced by the dialogue that better informs ... expectant mothers ... of the consequences that follow from a decision to elect a late-term abortion."

Dissenting, Justice Ginsburg and her fellow dissenters -- Justices John Paul Stevens, Stephen Breyer, and David Souter -- characterized the abortion right as essential to a woman's autonomy and her "enjoyment of equal citizenship." Why a woman's equality could be claimed to depend upon the option of destroying the life of her child is unexplained.

Indeed, Justice Ginsburg comes very close to equating the protection of unborn children to abusive behavior toward women. Seemingly to refute the "bond of love" between mother and child noted by the majority, Justice Ginsburg emphasizes unwanted pregnancies and the daily incidents of sexual assault.

This is a non sequitur. Proscribing an inhuman abortion practice does not reimpose "discredited notions about women's place in the family and under the Constitution," nor does it condone domestic abuse.

Justice Ginsburg is right, of course, that at one time -- a half century or more ago -- the law rather exclusively highlighted "the destiny and mission of women to fulfill the noble and benign offices of wife and mother."

America can and should still celebrate these as noble callings. Nothing about protecting unborn life, however, requires that they be the only vocational choices of a woman.

What was the Supreme Court's greatest gift of insight in Carhart? It was the rejection of the pernicious idea that women can only achieve by standing upon the graves of their unborn children.

Q: Some critics of the decision say it was a case of five Catholic justices imposing their morality on the nation. How do you see it?

Kmiec: This is a canard.

What should determine the abortion question -- for Catholic or non-Catholic judges -- is whether the claimed right can legitimately be said to be consistent with the premise of an "unalienable right to life" in the Declaration of Independence -- America's document of incorporation as a nation -- and the history, tradition and practices of the people which inform the definition of the word "liberty" in the 14th amendment.

If abortion is inconsistent with either, it is questionable -- as a constitutional or legal matter -- irrespective of one's faith tradition. Notwithstanding abundant science and common observation, the beginning of life remains contested, of course, in the population at large.

Given this claimed disagreement, it may well be that only the people through their legislative choices can decide it. If that is so, it is sound constitutional jurisprudence for judges of any or no faith to permit the legislative voice to be heard.

Of course, it is for Catholics to bring to bear on that discussion the Catholic teaching on the sacredness of all life from the moment of conception.

It is wrong to think morality is irrelevant to the adopted law. If moral considerations informed the original constitutional text or statutes adopted under it, then the morality that has been incorporated into the law is and ought to be respected since it has been adopted by the people -- as law, not faith.

Code: ZE07050319

Date: 2007-05-03

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Last Updated: 19 February 2013

Social Sciences Academy Gathers Superstars

By Elizabeth Lev

ROME, MAY 3, 2007 (Zenit.org).- The tranquil silence of the Vatican Gardens was interrupted this week by a burst of activity circulating around the Casina Pio IV, the exquisite little villa nestled in the heart of the garden, today home to the Pontifical Academy of Social Sciences.

The academy's 32 members meet every year to reflect on questions regarding Catholic social thought, and in the course of their deliberations they invite experts in various fields to address the academy and offer the fruit of their experience and study.

What made this session unique was that while discussing the question of "Charity and Justice in the Relations Among People and Nations," the academy invited a record number of speakers, many of whom were of superstar status on the world's religious and political stage.

The topics analyzed by the prestigious group ranged from the economics of charity and aid, to world peace, to interreligious dialogue, to migration and poverty. Practical ideas, concrete facts, hopeful signs and disappointing results were all laid out before the academicians.

The Roman Curia participated in the sessions at the highest level. Cardinal Walter Kasper, president of the Pontifical Council for Promoting Christian Unity, Cardinal Renato Martino, president of the Pontifical Council for Justice and Peace, and Cardinal Tarcisio Bertone, Vatican secretary of state, all gave addresses at the meeting.

Benedict XVI sent a letter to the president of the academy, Mary Ann Glendon, in which he emphasized that in the Christian experience charity and justice were inseparable, something he had discussed in his first encyclical, "Deus Caritas Est."

The Holy Father brought three challenges to the attention of the scholars -- the environment and sustainable development, respect for the rights and dignity of persons, and the loss of spiritual values in developed countries. The academy was enjoined many times to purify reason through faith recalling the Pope's words, "Faith liberates reason from its blind spots and therefore helps it do its work more effectively."

"Deus Caritas Est" served as a point of departure for the session. Dominican Father Augustine Di Noia, undersecretary of the Congregation for the Doctrine of the Faith, spoke in the first meeting about the encyclical underlining the distinction made by the Holy Father between "eros" and "agape," two Greek words for love, the former being love as desire and the second the Christian form of self-giving love.

Father Di Noia pointed out that the modern world erroneously sees the Church as opposed to "eros" and as seeking to suppress man's desire, whereas in fact the Church sees all forms of love as an inclination toward the good which can "find its complete fulfillment in the love of the triune God."

The Dominican also warned the academy that a secular anthropology based on an "alternate account of the meaning of human existence" has come to shape the programs of many international organizations. In this modern vision of human good, the Church's efforts are often "caricatured as retrogressive and intrusive."

Father Di Noia concluded his remarks by exhorting the social scientists of the academy to "counter this secular anthropology and the social engineering programs inspired by it," thus laying out the challenge facing the academy over the next few days.

Keeping the Future Present

Pope John Paul II founded the Academy of Social Sciences in 1994. The meeting of the academy in 2007 underscored how much the world had changed from its first meetings. The revolutions of the Internet, the change in the power of nations and the rise of terrorism have changed the face of globalization since the academy's initial sessions.

Some of these contemporary challenges were laid out by Henry Kissinger, who addressed the academy on the second day of meetings. The former U.S. secretary of state (1973-1977) gave a fascinating talk on the shifting relations between the nation-state and other political entities.

The Peace of Westphalia in 1648, which ended the Thirty Years' War, saw the rise of the modern nation-state, and the decline of the authority of the papacy and the Holy Roman emperor.

In the course of the transition from national monarchies based on claims of divine right to constitutional governments based on popular consent, the individual gained importance. Kissinger noted that in recent years, with economic globalization, nation-states have been becoming weaker, yet they remain the principal entities to which citizens look for assistance in dealing with the disruptive effects of that same globalization.

With reference to the present world situation, Kissinger also suggested that a nation is in trouble when it is no longer able to ask for sacrifices from its citizens, and when its citizens cease to "think the future is more important than the present." Those concerns were interestingly similar to those expressed by John Paul II in "Ecclesia in Europa" where the Holy Father pleaded with Europeans not to give up hope, not to cease believing in the future, and to continue to have children so that the continent would be ensured a future.

As does the Church, Kissinger relativized the temporal importance of the state, stating that a nation should have a sense of greatness beyond oneself, a recognition of the divine. Thus, it appears that, in his own way, the 1973 Nobel Peace Prize winner may also believe in purifying reason through faith.

Abraham's Tent

One of the most interesting sessions was the day on interreligious dialogue and world peace. Chaired by Mary Ann Glendon, academy president, an illustrious round-table discussion looked at the status of relations among the religions. Cardinal Kaspar opened the session, followed by Rabbi David Rosen, president of the International Jewish Committee, Cardinal Nasrallah Pierre Sfeir, patriarch of Antioch of the Maronites, and Patriarch Antonios Naguib of Alexandria of the Catholic Copts.

Cardinal Kaspar spoke beautifully on the necessity of prayer in dialogue among religions. When people approach a conversation on faith, prayer leaves "hearts more open" and aware that they are discussing something more important than their own interests.

Cardinal Sfeir gave a moving testimony of life in modern-day Lebanon, once a great model for peaceful coexistence among diverse religions, now a hotbed of tensions among its 16 various religions. Patriarch Naguib spoke from a pastoral point of view, bringing up four necessary points for interreligious dialogue -- truth, liberty, love and prayer. He particularly emphasized the importance of forgiveness, saying that without it, there can only be "an endless spiral of pride and violence."

Rabbi Rosen started by noting that "religion should be part of the solution, not the problem." Citing John Paul II's description of the various world religions as "life's interpretive keys," he discussed the question of religion and identity.

The rabbi ended his remarks with an arresting example to which all three of the great monotheistic religions could turn, that of Abraham, model of hospitality. "Abraham's tent," he said, "was open at all four corners, ready to welcome any visitor from any direction." When angels came to his door, there was no need to specify that they were messengers from God, because "Abraham saw every man as God's messenger."

Although the participants pointed out that many wars declared for the sake of religion are really territorial conflicts using religion as a mask, all the speakers agreed that "there cannot be peace among nations without peace among religions."

The four days of academy meetings were both provocative and fruitful, but after listening to leading intellectuals, policy-makers and Church officials, the social scientists closed on a humble note. The plenary session ended with a prayer written by Óscar Romero, the Salvadoran archbishop who was assassinated while celebrating Mass in a small chapel near his cathedral.

Using the words of the archbishop, they reminded themselves, "We may never see the end results, but that is the difference between the master builder and the worker. We are workers, not master builders; ministers, not messiahs. We are prophets of a future not our own. Amen."

* * *

Elizabeth Lev teaches Christian art and architecture at Duquesne University's Italian campus. She can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Code: ZE07050329

Date: 2007-05-03

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Last Updated: 19 February 2013

ANTWERP, Belgium, MAY 3, 2007 (Zenit.org).- Pax Christi International elected Archbishop Laurent Monsengwo of Kisangani, Congo, and Marie Dennis, director of the Maryknoll Office for Global Concerns, as co-presidents.

The election was held Saturday at the organization's annual general assembly, held in Belgium.

The present international president, Patriarch Michel Sabbah of Jerusalem, will remain in office until November.

Pax Christi International was founded in 1945 in France as a movement of Catholics in Europe who wanted to promote reconciliation at the end of World War II.

Code: ZE07050303

Date: 2007-05-03

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Last Updated: 19 February 2013

Call for Prayer and Issue Voting Guidelines

MANILA, Philippines, MAY 3, 2007 (Zenit.org).- Bishops are trying to prepare Filipinos for the May 14 national elections, calling above all for prayer.

The president of the bishops' conference of the Philippines, Archbishop Angel Lagdameo of Jaro, said in a statement: "We exhort everyone to be vigilant, to pray and to offer penance for this intention.

"May the hand of God stop evil from getting control. We need the Lord's help, without which our best efforts will come to nothing."

The statement urges communities and parishes nationwide to organize Holy Hours of prayer from May 5 to election day.

Contemplative men and women in more than 100 monasteries nationwide are encouraged to pray for the country, "especially for all voters, candidates and election officials and workers," said the bishops' statement.

Guidelines

Archbishop Lagdameo, during his May Day reflections, said that candidates should prove they are worth the peoples' vote by addressing the country's labor crisis.

The archbishop remarked that government leaders of the future must consider the labor condition a priority as the country struggles with an unemployment rate of 8.7%.

Cardinal Gaudencio Rosales of Manila, issued a statement urging the lay faithful to take seriously their role as citizens through active participation in responsible voting.

Cardinal Rosales' statement, read in all churches within the Manila Archdiocese, called on the clergy and the faithful to vote for candidates who: love and fear God; are guided by a well-formed conscience and are thus sensitive to the choice of what is good; live and serve consistently with moral principles; are honest, nonviolent and compassionate.

The 74-year-old cardinal lamented, "In the past, enormous sufferings resulted from political ambitions, maneuvers and group adventurism resulting in the country's poor becoming even poorer."

Code: ZE07050316

Date: 2007-05-03

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Last Updated: 19 February 2013

Highlights Plight of Traumatized Children

GENEVA, MAY 3, 2007 (Zenit.org).- The Holy See is lending its support to a U.N. initiative aimed at aiding some 4 million displaced Iraqis, a number that grows by the day.

"The world is witnessing an unprecedented degree of hate and destructiveness in Iraq; this phenomenon concomitantly exerts a widening deadly impact in the entire Middle East region," said Archbishop Silvano Tomasi.

The Holy See's permanent observer to the U.N. offices at Geneva recalled Pope John Paul II's appeal to avoid armed conflict in the area.

"While the consequences of this generalized violence affect the social and economic life of the country, they also are a stark reminder of the passionate appeals of the late Pope John Paul II to avoid 'the tremendous consequences that an international military operation would have for the population of Iraq,'" Archbishop Tomasi said.

"[The Pope] insistently called for negotiations even though he knew well that peace at any price might not be possible," the archbishop recalled.

The consequence of the conflict is "massive uprooting and displacement of the Iraqi population," Archbishop Tomasi added.

"The figures are telling," he continued. "Some 2 million Iraqis currently displaced internally and 2 million others have already fled the country, and between 40,000 and 50,000 are fleeing their homes each month."

Psychological scars

The Holy See representative particularly spoke in defense of children, whom he said are bearing the brunt of the tragedy.

"With the experience of daily violence and, even more tragically, with the killing of family members before their eyes, many children are traumatized and remain without professional care," Archbishop Tomasi lamented.

"Most uprooted Iraqi children wake up in their exile to a daily experience of uncertainty, deprivation, lack of schooling, and to hard labor just to attain the minimal essentials of human survival. One has to wonder how their psychological scars will condition the future," he said.

The archbishop asserted that "this is not the time to look at technical definitions of a refugee," and called for practical measures, including "acceptance of all people fleeing generalized violence, respectful of their human rights and of the principle of non-refoulement, registration for an orderly assistance, provision of appropriate legal documentation."

Archbishop Tomasi referred to "previous but similar crises of massive displacement," saying that the mobilization of the international community "proved effective in providing durable solutions."

"There is a need to match past effectiveness," he said. "While the right to return has to be kept alive for displaced Iraqis, other examples in recent history have demonstrated that the option of resettlement may need to be enhanced, and doors opened by more countries and for greater numbers, so that pressure within the region may be alleviated on a short-term basis."

Still, the prelate called for a "renewed and concerted effort" to make Iraq itself "conducive to a decent and sustainable coexistence among all its citizens."

Code: ZE07050306

Date: 2007-05-03

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Last Updated: 19 February 2013

Adds It's a Theological Opinion That Can Be Defended

ROME, MAY 3, 2007 (Zenit.org).- The theory of limbo is not ruled out, says a member of the International Theological Commission, commenting on a study from the panel.

Sister Sara Butler, a Missionary Servant of the Most Blessed Trinity, has served on the commission since 2004. The commission is an advisory body comprised of 30 theologians chosen by the Pope. Its documents are not considered official expressions of the magisterium, but the commission does help the Holy See to examine important doctrinal issues.

On April 20, the commission released a document, commissioned under Pope John Paul II, called "The Hope of Salvation for Infants Who Die Without Being Baptized." Benedict XVI approved it for publication.

In an interview with Inside the Vatican magazine, Sister Butler, who teaches dogmatic theology at St. Joseph's Seminary in Yonkers, New York, says "the report concludes that limbo remains a 'possible theological opinion.' Anyone who wants to defend it is free to do so. This document, however, tries to give a theological rationale for hoping that unbaptized infants may be saved."

"The [International Theological Commission] wants to give more weight to God's universal salvific will and to solidarity in Christ than to the necessity of baptism, which is not absolute but is qualified in certain ways," she said.

Principles of faith

Sister Butler cited No. 41 of the document: "[B]esides the theory of limbo -- which remains a possible theological option -- there can be other ways to integrate and safeguard the principles of faith outlined in Scripture."

She added: "The commission is trying to say what the Catechism of the Catholic Church -- Nos. 1260, 1261, 1283 -- has already said: that we have a right to hope that God will find a way to offer the grace of Christ to infants who have no opportunity for making a personal choice with regard to their salvation."

The document "is trying to provide a theological rationale for what has already been proposed in several magisterial documents since the council," Sister Butler said. "Generally, the [commission] documents offer a point of reference for bishops and theology professors in seminaries, for example, to offer an explanation for the development of doctrine.

"But I doubt whether this would lead to a further statement from the magisterium, because it says no more than what has already been said in the [Catechism], in the funeral rites for infants who have died without baptism in the 1970 Roman Missal, and in 'Pastoralis Actio' -- the document from 1980 from the [Congregation for the Doctrine of the Faith] on the baptism of infants.

"It says nothing new; it is simply trying to make explicit the theological grounding for this hope. 'Gaudium et Spes,' 22, and 'Lumen Gentium,' 14 and 16, at the Second Vatican Council, opened the way for this development. Actually, some wanted the teaching on limbo formally defined at the council, but the topic was excluded from the agenda."

Extra-sacramental gift

The theological commission's document, she said, "just indicates that given our understanding of God's mercy and the plan of salvation which includes Christ and the gift of the Holy Spirit in the Church, we dare to hope that these infants will be saved by some extra-sacramental gift of Christ."

"We do not know what the destiny of these children is," she said, "but we have grounds for hope."

Sister Butler spoke of the plight of aborted babies.

"I'm sure we never considered suggesting that these infants be declared martyrs," she said. "We were, of course, aware that in many places Catholics remember the unborn babies who have been aborted on the feast of the Holy Innocents. We didn't propose a solution."

She added: "In this particular instance, death is the way these children might be united with Christ: Through the violent circumstances of their deaths, they may be united to his paschal mystery.

"The Council explicitly taught that God provides a way of salvation for those who are invincibly ignorant of the Gospel and therefore have no access to sacramental baptism.

"The [commission] report extends the logic of this teaching to infants. We suggest that the Holy Spirit offers to them, in a way known to God, the possibility of being made partakers in the paschal mystery."

Sister Butler nevertheless warned that "the ordinary means of salvation is baptism, and that infants should be baptized; Catholic parents have a serious obligation."

"God is not bound to the sacraments," she said, "and therefore, just as we understand there are other possible ways for adults who are in invincible ignorance of the Gospel to achieve salvation, so we presume there are other ways, known to God, open to infants who unfortunately die without baptism."

Code: ZE07050301

Date: 2007-05-03